PHOENIX, Ariz. March 14, 2008 - The Center for Biological Diversity and Maricopa Audubon have won a federal district court lawsuit against the U.S. Fish and Wildlife Service to continue Endangered Species Act protection for the desert nesting bald eagle, found mostly in Arizona. The victory resulted from challenge of the Service's 2006 rejection of an October 6, 2004 Center and Maricopa Audubon petition to increase protection for the eagle and its habitat and from a challenge to the agency's nationwide effort to remove Endangered Species Act protection from all bald eagles.
On March 5, 2008, Federal District Judge Mary Murguia reversed the Service's 2006 decision, calling it "arbitrary and capricious, and contrary to law." She reinstated Endangered Species Act protection for the eagle and its habitat in Arizona and ordered the Fish and Wildlife Service to complete a reevaluation of its 2006 decision within nine months.
Only about 50 breeding pairs of desert nesting bald eagles survive. They are reproductively, geographically, biologically, and behaviorally distinct from all other bald eagle populations and occupy uniquely hot and dry habitat. Unique populations and their habitat qualify for Endangered Species Act protection with a designation as a "distinct population segment."
On October 6, 2004, the Center and Maricopa filed a petition requesting increased protection for the bald eagle in Arizona. The petition was based on evidence of increasing threats to habitat and presentation of data from a previously suppressed Arizona Game and Fish Department study demonstrating likely extinction of nesting bald eagles from Arizona within the next 57 and 82 years.
Increasing habitat threats represent the gravest risk to nesting eagles in Arizona mostly because of increasing groundwater pumping drying up streamside nesting habitat. The Endangered Species Act is the only law that protects the habitat of imperiled wildlife.
On August 30, 2006, the Fish and Wildlife Service rejected the petition. This rejection did not take place because of new scientific data or studies.
On January 4, 2007, the Center and Maricopa Audubon filed a lawsuit in federal court challenging the rejection of the petition. The Service responded on July 9, 2007 with nationwide removal of Endangered Species Act protection for bald eagles, including the desert nesting bald eagle in Arizona.
Judge Murguia observed in her March 5, 2008 order:
"'On July 18, 2006, FWS scientists and officials from the FWS Arizona Field Office, the Southwest Regional Office in New Mexico, and the Listing Branch Office of the Division of Conservation & Classification in Washington, D.C., participated in a telephone conference call. AR 1980-1988. During that call, although Sarah Quamme, of the FWS's Regional Office, stated that there was "no info[rmation] to refute [Plaintiffs' petition] at [the] 90 day stage," FWS biologist Chris Nolan asserted that whether or not a population qualifies as a DPS is "largely a policy call." AR 1983, 1985. He informed the participants that "Ben [Tuggle, FWS Southwest Regional Director] and Ren [Loenhoffer, FWS Associate Director in the Washington, D.C. Office] have reached [a] policy call & we need to support [it]." AR 1985. Sarah Quamme then stated that the "[a]nswer has to be that its [sic] not a DPS . . . [w]e have marching orders." AR 1985, 1987. Doug Krofta, of the Washington, D.C. Office, also stated that "[w]e've been given an answer now we need to find an analysis that works. . . . Need to fit argument in as defensible a fashion as we can.' AR 1986-87. These statements suggest that the FWS drew an irrational connection between the facts found and the choice made in the 90-day finding; they appear to exemplify an arbitrary and capricious agency action."
She concluded:
"...it appears that FWS participants in the July 18, 2006 conference call received "marching orders" and were directed to find an analysis that fit with a negative 90-day finding on the DPS status of the Desert bald eagle. These facts cause the Court to have no confidence in the objectivity of the agency's decision making process in its August 30, 2006 90-day finding."
"Bush administration officials removed bald eagle habitat protection to benefit their developer friends who seek to divert stream flow critical for eagles. This court victory has given Arizona's desert nesting bald eagle a stay of execution. We now have additional time to make protection for our bald eagle and its habitat permanent," says Dr. Robin Silver, founder and board member of the Center for Biological Diversity and vice president of Maricopa Audubon.
The San Carlos Apache Tribe, Yavapai-Apache Nation, Tonto Apache Tribe, Fort McDowell Yavapai Nation, and Salt River Pima-Maricopa Indian Community all joined the lawsuit to help protect the desert nesting bald eagle. Attorneys Dan Rohlf of Lewis & Clark Law School Pacific Environmental Advocacy Center, Justin Augustine of the Center, and Howard Shanker represented the Center and Maricopa Audubon in this case.
